Merrell Dow Pharmaceuticals Inc. v. Thompson Ex Rel. Thompson

*818Justice Brennan,

with whom Justice White, Justice Marshall, and Justice Blackmun join, dissenting.

Article III, § 2, of the Constitution provides that the federal judicial power shall extend to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” We have long recognized the great breadth of this grant of jurisdiction, holding that there is federal jurisdiction whenever a federal question is an “ingredient” of the action, Osborn v. Bank of the United States, 9 Wheat. 738, 823 (1824), and suggesting that there may even be jurisdiction simply because a case involves “potential federal questions,” Textile Workers v. Lincoln Mills, 353 U. S. 448, 471 (1957) (Frankfurter, J., dissenting); see also Osborn, supra, at 824; Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816); Pacific Railroad Removal Cases, 115 U. S. 1 (1885); Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 492-493 (1983).

Title 28 U. S. C. § 1331 provides, in language that parrots the language of Article III, that the district courts shall have original jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States.” Although this language suggests that Congress intended in § 1331 to confer upon federal courts the full breadth of permissible “federal question” jurisdiction (an inference that is supported by the contemporary evidence, see Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U. S. 1, 8, n. 8 (1983); Forrester, The Nature of a “Federal Question,” 16 Tulane L. Rev. 362, 374-376 (1942); Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 568 (1985)), § 1331 has been construed more narrowly than its constitutional counterpart. See Verlinden B. V., supra, at 494-495; Romero v. International Terminal Operating Co., 358 U. S. 354, 379 (1959). Nonetheless, given the language of the statute and its close relation to the constitutional grant of federal-question jurisdiction, limitations on federal-question jurisdiction under § 1331 must be justified by careful consideration of the reasons *819underlying the grant of jurisdiction and the need for federal review. Ibid. I believe that the limitation on federal jurisdiction recognized by the Court today is inconsistent with the purposes of § 1331. Therefore, I respectfully dissent.

I

While the majority of cases covered by §1331 may well be described by Justice Holmes’ adage that “[a] suit arises under the law that creates the cause of action,” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916), it is firmly settled that there may be federal-question jurisdiction even though both the right asserted and the remedy sought by the plaintiff are state created. See C. Wright, Federal Courts § 17, pp. 95-96 (4th ed. 1983) (hereinafter Wright); M. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 64-71 (1980) (hereinafter Redish). The rule as to such cases was stated in what Judge Friendly described as “[t]he path-breaking opinion” in Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921). T. B. Harms Co. v. Eliscu, 339 F. 2d 823, 827 (CA2 1964). In Smith, a shareholder of the defendant corporation brought suit in the federal court to enjoin the defendant from investing corporate funds in bonds issued under the authority of the Federal Farm Loan Act. The plaintiff alleged that Missouri law imposed a fiduciary duty on the corporation to invest only in bonds that were authorized by a valid law and argued that, because the Farm Loan Act was unconstitutional, the defendant could not purchase bonds issued under its authority. Although the cause of action was wholly state created, the Court held that there was original federal jurisdiction over the case:

“The general rule is that where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States, and that such federal claim is not merely colorable, and rests upon a reasonable foundation, the District Court has jurisdic*820tion under [the statute granting federal question jurisdiction].” 255 U. S., at 199.

The continuing vitality of Smith is beyond challenge. We have cited it approvingly on numerous occasions, and reaffirmed its holding several times — most recently just three Terms ago by a unanimous Court in Franchise Tax Board v. Construction Laborers Vacation Trust, supra, at 9. See American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, 256 U. S. 350, 357 (1921); Bell v. Hood, 327 U. S. 678, 685 (1946); Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U. S. 437, 450, and n. 18 (1955) (plurality opinion); Machinists v. Central Airlines, Inc., 372 U. S. 682, 696 (1963); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 70 (1978). See also Ashwander v. TVA, 297 U. S. 288, 356 (1936) (separate opinion of McReynolds, J.); Textile Workers v. Lincoln Mills, supra, at 470 (Frankfurter, J., dissenting); Wheeldin v. Wheeler, 373 U. S. 647, 659 (1963) (Brennan, J., dissenting). Cf. Gully v. First National Bank, 299 U. S. 109, 112 (1936) (“To bring a case within [§ 1331], a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action”). Moreover, in addition to Judge Friendly’s authoritative opinion in T. B. Harms Co. v. Eliscu, supra, at 827, Smith has been widely cited and followed in the lower federal courts. See, e. g., Hanes Corp. v. Millard, 174 U. S. App. D. C. 253, 263, n. 8, 531 F. 2d 585, 595, n. 8 (1976); Mungin v. Florida East Coast R. Co., 416 F. 2d 1169, 1176-1177 (CA5 1969); Ivy Broadcasting Co. v. American Tel. & Tel. Co., 391 F. 2d 486, 492 (CA2 1968); Warrington Sewer Co. v. Tracy, 463 F. 2d 771, 772 (CA3 1972) (per curiam); New York by Abrams v. Citibank, N. A., 537 F. Supp. 1192, 1196 (SDNY 1982); Kravitz v. Homeowners Warranty Corp., 542 F. Supp. 317, 319 (ED Pa. 1982). See also Stone & Webster Engineering Corp. v. Ilsley, 690 F. 2d 323 (CA2 1982); Christopher v. Cavallo, 662 F. 2d 1082 (CA4 1981); Mountain Fuel Supply Co. v. Johnson Oil Co., 586 F. 2d 1375 (CA10 1978), *821cert. denied, 441 U. S. 952 (1979); Garrett v. Time-D. C., Inc., 502 F. 2d 627 (CA9 1974), cert. denied, 421 U. S. 913 (1975); Sweeney v. Abramovitz, 449 F. Supp. 213 (Conn. 1978). Furthermore, the principle of the Smith case has been recognized and endorsed by most commentators as well. Redish 67, 69; American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts 178 (1969) (hereinafter ALI); Wright § 17, at 96; P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 889 (2d ed., 1973); Mishkin, The Federal “Question” in the District Courts, 53 Colum. L. Rev. 157, 166 (1953); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216, 225 (1948).1

*822There is, to my mind, no question that there is federal jurisdiction over the respondents’ fourth cause of action under the rule set forth in Smith and reaffirmed in Franchise Tax *823Board. Respondents pleaded that petitioner’s labeling of the drug Bendectin constituted “misbranding” in violation of §§201 and 502(f)(2) and (j) of the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U. S. C. § 301 et seq. (1982 ed. and Supp. III), and that this violation “directly and proximately caused” their injuries. App. 21-22 (Thompson complaint), 31-32 (MacTavish complaint). Respondents asserted in the complaint that this violation established petitioner’s negligence per se and entitled them to recover damages without more. Ibid. No other basis for finding petitioner negligent was asserted in connection with this claim. As pleaded, then, respondents’ “right to relief depend[ed] upon the construction or application of the Constitution or laws of the United States.” Smith, 255 U. S., at 199; see also Franchise Tax Board, 463 U. S., at 28 (there is federal jurisdiction under § 1331 where the plaintiff’s right to relief “necessarily depends” upon resolution of a federal question).2 Furthermore, although petitioner disputes its liability under the FDCA, it concedes that respondents’ claim that petitioner violated the FDCA is “colorable, and rests upon a reasonable foundation.” Smith, supra, at 199.3 *824Of course, since petitioner must make this concession to prevail in this Court, it need not be accepted at face value. However, independent examination of respondents’ claim substantiates the conclusion that it is neither frivolous nor meritless. As stated in the complaint, a drug is “mis-branded” under the FDCA if “the labeling or advertising fails to reveal facts material . . . with respect to consequences which may result from the use of the article to which the labeling or advertising relates . . . .” 21 U. S. C. §321(n). Obviously, the possibility that a mother’s ingestion of Ben-dectin during pregnancy could produce malformed children is material. Petitioner’s principal defense is that the Act does not govern the branding of drugs that are sold in foreign countries. It is certainly not immediately obvious whether this argument is correct. Thus, the statutory question is one which “discloses a need for determining the meaning or application of [the FDCA],” T. B. Harms Co. v. Eliscu, 339 F. 2d, at 827, and the claim raised by the fourth cause of action is one “arising under” federal law within the meaning of § 1331.

II

The Court apparently does not disagree with any of this — except, of course, for the conclusion. According to the Court, if we assume that Congress did not intend that there be a private federal cause of action under a particular federal law (and, presumably, a fortiori if Congress’ decision not to create a private remedy is express), we must also assume that Congress did not intend that there be federal jurisdiction over a state cause of action that is determined by that federal law. Therefore, assuming — only because the parties *825have made a similar assumption — that there is no private cause of action under the FDCA,4 the Court holds that there is no federal jurisdiction over the plaintiffs’ claim:

“The significance of the necessary assumption that there is no federal private cause of action thus cannot be overstated. For the ultimate import of such a conclusion, as we have repeatedly emphasized, is that it would flout congressional intent to provide a private federal remedy for the violation of the federal statute. We think it would similarly flout, or at least undermine, congressional intent to conclude that the federal courts might nevertheless exercise federal-question jurisdiction and provide remedies for violations of that federal statute solely because the violation of the federal statute is said to be a ‘rebuttable presumption’ or a ‘proximate cause’ under state law, rather than a federal action under federal law.” Ante, at 812 (footnotes omitted).

The Court nowhere explains the basis for this conclusion. Yet it is hardly self-evident. Why should the fact that Congress chose not to create a private federal remedy mean that Congress would not want there to be federal jurisdiction to adjudicate a state claim that imposes liability for violating the federal law? Clearly, the decision not to provide a private federal remedy should not affect federal jurisdiction unless the reasons Congress withholds a federal remedy are also reasons for withholding federal jurisdiction. Thus, it is nec*826essary to examine the reasons for Congress’ decisions to grant or withhold both federal jurisdiction and private remedies, something the Court has not done.

A

In the early da' 's of our Republic, Congress was content to leave the task of interpreting and applying federal laws in the first instance to the state courts; with one short-lived exception,5 Congress did not grant the inferior federal courts original jurisdiction over cases arising under federal law until 1875. Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470. The reasons Congress found it necessary to add this jurisdiction to the district courts are well known. First, Congress recognized “the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution.” Martin v. Hunter’s Lessee, 1 Wheat., at 347-348 (Story, J.) (emphasis in original). See also, Comment, Federal Preemption, Removal Jurisdiction, and the Well-Pleaded Complaint Rule, 51 U. Chi. L. Rev. 634, 636 (1984) (hereinafter Comment); D. Currie, Federal Courts 160 (3d ed. 1982) (hereinafter Cur-rie). Concededly, because federal jurisdiction is not always exclusive and because federal courts may disagree with one another, absolute uniformity has not been obtained even under § 1331. However, while perfect uniformity may not have been achieved, experience indicates that the availability of a federal forum in federal-question cases has done much to advance that goal. This, in fact, was the conclusion of the American Law Institute’s Study of the Division of Jurisdiction Between State and Federal Courts. ALI 164-168.

In addition, § 1331 has provided for adjudication in a forum that specializes in federal law and that is therefore more likely to apply that law correctly. Because federal-question *827cases constitute the basic grist for federal tribunals, “[t]he federal courts have acquired a considerable expertness in the interpretation and application of federal law.” Id., at 164-165. By contrast, “it is apparent that federal question cases must form a very small part of the business of [state] courts.” Id., at 165. As a result, the federal courts are comparatively more skilled at interpreting and applying federal law, and are much more likely correctly to divine Congress’ intent in enacting legislation.6 See ibid.; Redish 71; Currie 160; Comment 636; Hornstein, Federalism, Judicial Power and the “Arising Under” Jurisdiction of the Federal Courts: A Hierarchical Analysis, 56 Ind. L. J. 563, 564-565 (1981).

These reasons for having original federal-question jurisdiction explain why cases like this one and Smith — i. e., cases where the cause of action is a creature of state law, but an *828essential element of the claim is federal — “arise under” federal law within the meaning of § 1331. Congress passes laws in order to shape behavior; a federal law expresses Congress’ determination that there is a federal interest in having individuals or other entities conform their actions to a particular norm established by that law. Because all laws are imprecise to some degree, disputes inevitably arise over what specifically Congress intended to require or permit. It is the duty of courts to interpret these laws and apply them in such a way that the congressional purpose is realized. As noted above, Congress granted the district courts power to hear cases “arising under” federal law in order to enhance the likelihood that federal laws would be interpreted more correctly and applied more uniformly. In other words, Congress determined that the availability of a federal forum to adjudicate cases involving 'federal questions would make it more likely that federal laws would shape behavior in the way that Congress intended.

By making federal law an essential element of a state-law claim, the State places the federal law into a context where it will operate to shape behavior: the threat of liability will force individuals to conform their conduct to interpretations of the federal law made by courts adjudicating the state-law claim. It will not matter to an individual found liable whether the officer who arrives at his door to execute judgment is wearing a state or a federal uniform; all he cares about is the fact that a sanction is being imposed — and may be imposed again in the future — because he failed to comply with the federal law. Consequently, the possibility that the federal law will be incorrectly interpreted in the context of adjudicating the state-law claim implicates the concerns that led Congress to grant the district courts power to adjudicate cases involving federal questions in precisely the same way as if it was federal law that “created” the cause of action. It therefore follows that there is federal jurisdiction under § 1331.

*829B

The only remaining question is whether the assumption that Congress decided not to create a private cause of action alters this analysis in a way that makes it inappropriate to exercise original federal jurisdiction. According to the Court, “the very reasons for the development of the modem implied remedy doctrine” support the conclusion that, where the legislative history of a particular law shows (whether expressly or by inference) that Congress intended that there be no private federal remedy, it must also mean that Congress would not want federal courts to exercise jurisdiction over a state-law claim making violations of that federal law actionable. Ante, at 811. These reasons are “The increased complexity of federal legislation/” “The increased volume of federal litigation/ ” and “ The desirability of a more careful scrutiny of legislative intent.’” Ibid. (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 377 (1982)).

These reasons simply do not justify the Court’s holding. Given the relative expertise of the federal courts in interpreting federal law, supra, at 826-827, the increased complexity of federal legislation argues rather strongly in favor of recognizing federal jurisdiction. And, while the increased volume of litigation 'may appropriately be considered in connection with reasoned arguments that justify limiting the reach of § 1331, I do not believe that the day has yet arrived when this Court may trim a statute solely because it thinks that Congress made it too broad.7

*830This leaves only the third reason: “‘the desirability of a more careful scrutiny of legislative intent.”’ Ante, at 811. I certainly subscribe to the proposition that the Court should consider legislative intent in determining whether or not there is jurisdiction under § 1331. But the Court has not examined the purposes underlying either the FDCA or § 1331 in reaching its conclusion that Congress’ presumed decision not to provide a private federal remedy under the FDCA must be taken to withdraw federal jurisdiction over a private state remedy that imposes liability for violating the FDCA. Moreover, such an examination demonstrates not only that it is consistent with legislative intent to find £hat there is federal jurisdiction over such a claim, but, indeed, that it is the Court’s contrary conclusion that is inconsistent with congressional intent.

The enforcement scheme established by the FDCA is typical of other, similarly broad regulatory schemes. Primary responsibility for overseeing implementation of the Act has been conferred upon a specialized administrative agency, here the Food and Drug Administration (FDA).8 Congress has provided the FDA with a wide-ranging arsenal of weapons to combat violations of the FDCA, including authority to obtain an ex parte court order for the seizure of goods subject to the Act, see 21 U. S. C. § 334, authority to initiate proceedings in a federal district court to enjoin continuing violations of the FDCA, see §332, and authority to request a United States Attorney to bring criminal proceedings against violators, see § 333. See generally 1 J. O’Reilly, Food and Drug Administration, chs. 6-10 (1979 and Supp. 1985). Significantly, the FDA has no independent enforcement authority; final enforcement must come from the federal courts, *831which have exclusive jurisdiction over actions under the FDCA. See §§ 332(a), 333, 334(a)(1). Thus, while the initial interpretive function has been delegated to an expert administrative body whose interpretations are entitled to considerable deference, final responsibility for interpreting the statute in order to carry out the legislative mandate belongs to the federal courts. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9 (1984) (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent”).

Given that Congress structured the FDCA so that all express remedies are provided by the federal courts, it seems rather strange to conclude that it either “flout[sj” or “undermine[s]” congressional intent for the federal courts to adjudicate a private state-law remedy that is based upon violating the FDCA. See ante, at 812. That is, assuming that a state cause of action based on the FDCA is not preempted, it is entirely consistent with the FDCA to find that it “arises under” federal law within the meaning of § 1331. Indeed, it is the Court’s conclusion that such a state cause of action must be kept out of the federal courts that appears contrary to legislative intent inasmuch as the enforcement provisions of the FDCA quite clearly express a preference for having federal courts interpret the FDCA and provide remedies for its violation.

It may be that a decision by Congress not to create a private remedy is intended to preclude all private enforcement. If that is so, then a state cause of action that makes relief available to private individuals for violations of the FDCA is pre-empted. But if Congress’ decision not to provide a private federal remedy does not pre-empt such a state remedy, then, in light of the FDCA’s clear policy of relying on the federal courts for enforcement, it also should not foreclose federal jurisdiction over that state remedy. Both § 1331 and the enforcement provisions of the FDCA reflect Congress’ strong *832desire to utilize the federal courts to interpret and enforce the FDCA, and it is therefore at odds with both these statutes to recognize a private state-law remedy for violating the FDCA but to hold that this remedy cannot be adjudicated in the federal courts.

The Court’s contrary conclusion requires inferring from Congress’ decision not to create a private federal remedy that, while some private enforcement is permissible in state courts, it is “bad” if that enforcement comes from the federal courts. But that is simply illogical. Congress’ decision to withhold a private right of action and to rely instead on public enforcement reflects congressional concern with obtaining more accurate implementation and more coordinated enforcement of a regulatory scheme. See National Railroad Passenger Corporation v. National Assn. of Railroad Passengers, 414 U. S. 453, 462-465 (1974); Holloway v. Bristol-Myers Corp., 158 U. S. App. D. C. 207, 218-220, 485 F. 2d 986, 997-999 (1973); Stewart & Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1208-1209 (1982). These reasons are closely related to the Congress’ reasons for giving federal courts original federal-question jurisdiction. Thus, if anything, Congress’ decision not to create a private remedy strengthens the argument in favor of finding federal jurisdiction over a state remedy that is not pre-empted.

Some commentators have argued that the result in Smith conflicts with our decision in Moore v. Chesapeake & Ohio R. Co., 291 U. S. 205 (1934). See, e. g., Greene, Hybrid State Law in the Federal Courts, 83 Harv. L. Rev. 289, 323 (1969). In Moore, the plaintiff brought an action under Kentucky’s Employer Liability Act, which provided that a plaintiff could not be held responsible for contributory negligence or assumption of risk where his injury resulted from the violation of any state or federal statute enacted for the safety of employees. The plaintiff in Moore alleged that his injury was due to the defendant’s failure to comply with the Federal Safety Appliance Act; therefore, an important issue in the adjudication of the state cause of action was whether the terms of the federal law had been violated. The Court could have dismissed the complaint on the ground that the federal issue would arise only in response to a defense of contributory negligence or assumption of risk, and that therefore there was no jurisdiction under the well-pleaded complaint rule. Instead, the Court held that “a suit brought under the state statute which defines liability to employees who are injured while engaged in intrastate commerce, and brings within the purview of the statute a breach of the duty imposed by the federal statute, should [not] be regarded as a suit arising under the laws of the United States and cognizable in the federal court in the absence of diversity of citizenship.” 291 U. S., at 214-215.

The Court suggests that Smith and Moore may be reconciled if one views the question whether there is jurisdiction under § 1331 as turning upon “an evaluation of the nature of the federal interest at stake.” Ante, at 814, n. 12 (emphasis in original). Thus, the Court explains, while in Smith the issue was the constitutionality of “an important federal statute,” in Moore *822the federal interest was less significant in that “the violation of the federal standard as an element of state tort recovery did not fundamentally change the state tort nature of the action.” Ante, at 815, n. 12.

In one sense, the Court is correct in asserting that we can reconcile Smith and Moore on the ground that the “nature” of the federal interest was more significant in Smith than in Moore. Indeed, as the Court appears to believe, ante, at 814-815, n. 12, we could reconcile many of the seemingly inconsistent results that have been reached under § 1331 with such a test. But this is so only because a test based upon an ad hoc evaluation of the importance of the federal issue is infinitely malleable: at what point does a federal interest become strong enough to create jurisdiction? What principles guide the determination whether a statute is “important” or not? Why, for instance, was the statute in Smith so “important” that direct review of a state-court decision (under our mandatory appellate jurisdiction) would have been inadequate? Would the result in Moore have been different if the federal issue had been a more important element of the tort claim? The point is that if one makes the test sufficiently vague and general, virtually any set of results can be “reconciled.” However, the inevitable — and undesirable — result of a test such as that suggested in the Court’s footnote 12 is that federal jurisdiction turns in every case on an appraisal of the federal issue, its importance and its relation to state-law issues. Yet it is precisely because the Court believes that federal jurisdiction would be “ill served” by such a case-by-case appraisal that it rejects petitioner’s claim that the difficulty and importance of the statutory issue presented by its claim suffices to confer jurisdiction under § 1331. Ante, at 817. The Court cannot have it both ways.

My own view is in accord with those commentators who view the results in Smith and Moore as irreconcilable. See, e. g., Redish 67; D. Currie, Federal Jurisdiction in a Nutshell 109 (2d ed. 1981). That fact does not trouble me greatly, however, for I view Moore as having been a “sport” at the time it was decided and having long been in a state of innocuous desuetude. Unlike the jurisdictional holding in Smith, the jurisdictional holding in Moore has never been relied upon or even cited by this Court. Moore has similarly borne little fruit in the lower courts, leading Professor Redish to conclude after comparing the vitality of Smith and Moore that “the principle enunciated in Smith is the one widely followed by modern lower federal courts.” Redish 67. Finally, as noted in text, the commentators have also preferred Smith. Supra, at 821. Moore simply has not sur*823vived the test of time; it is presently moribund, and, to the extent that it is inconsistent with the well-established rule of the Smith case, it ought to be overruled.

As the Court correctly notes, the Court of Appeals erred in holding that respondents’ right to relief did not depend upon the resolution of a federal question because respondents might prevail on one of their other, wholly state-law claims. The fourth cause of action presents an independent and independently sufficient claim for relief. Whether it “arises under” federal law within the meaning of § 1331 must therefore be determined without reference to any other claims, as if only that claim was asserted. If, after such consideration, it is determined that there is jurisdiction, the plaintiff may join additional state-law claims meeting the test for pendent jurisdiction set forth in Mine Workers v. Gibbs, 383 U. S. 715 (1966). See ante, at 817, n. 15.

Franchise Tax Board states that the plaintiff’s right to relief must necessarily depend upon resolution of a “substantial” federal question. 463 U. S., at 28. In context, however, it is clear that this was simply another *824way of stating that the federal question must be colorable and have a reasonable foundation. This understanding is consistent with the manner in which the Smith test has always been applied, as well as with the way we have used the concept of a “substantial” federal question in other eases concerning federal jurisdiction. See, e. g., Hagans v. Lavine, 415 U. S. 528, 536-537 (1974); Bell v. Hood, 327 U. S. 678, 682 (1946).

It bears emphasizing that the Court does not hold that there is no private cause of action under the FDCA. Rather, it expressly states that “[f]or purposes of our decision, we assume that this is a correct interpretation of the FDCA.” Ante, at 810. The Court simply holds petitioner to its concession that the FDCA provides no private remedy, and decides petitioner’s claim on the basis of this concession. I shall do the same. Under the Court’s analysis, however, if a party persuaded a court that there is a private cause of action under the FDCA, there would be federal jurisdiction under Smith and Franchise Tax Board over a state cause of action making violations of the FDCA actionable. Such jurisdiction would apparently exist even if the plaintiff did not seek the federal remedy.

Congress granted original federal-question jurisdiction briefly in the Midnight Judges Act, ch. 4, § 11, 2 Stat. 92 (1801), which was repealed in 1802, Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132.

Another reason Congress conferred original federal-question jurisdiction on the district courts was its belief that state courts are hostile to assertions of federal rights. See Hornstein, Federalism, Judicial Power and the “Arising Under” Jurisdiction of the Federal Courts: A Hierarchical Analysis, 56 Ind. L. J. 563, 564-565 (1981); Comment 636; Redish 71. Although this concern may be less compelling today than it once was, the American Law Institute reported as recently as 1969 that “it is difficult to avoid concluding that federal courts are more likely to apply federal law sympathetically and understanding^ than are state courts.” ALI 166. In any event, this rationale is, like the rationale based on the expertise of the federal courts, simply an expression of Congress’ belief that federal courts are more likely to interpret federal law correctly.

One might argue that this Court’s appellate jurisdiction over state-court judgments in cases arising under federal law can be depended upon to correct erroneous state-court decisions and to insure that federal law is interpreted and applied uniformly. However, as any experienced observer of this Court can attest, “Supreme Court review of state courts, limited by docket pressures, narrow review of the facts, the debilitating possibilities of delay, and the necessity of deferring to adequate state grounds of decision, cannot do the whole job.” Currie 160. Indeed, having served on this Court for 30 years, it is clear to me that, realistically, it cannot even come close to “doing the whole job” and that § 1331 is essential if federal rights are to be adequately protected.

Cf. Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J.) (“It is most true that this Court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. . . . We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given”). The narrow exceptions we have recognized to Chief Justice Marshall’s famous dictum have all been justified by compelling judicial concerns of comity and federalism. See, e. g., Younger v. Harris, 401 U. S. 37 (1971); Burford v. Sun Oil Co., 319 U. S. 315 (1943). It would be wholly illegitimate, however, for this Court to deter*830mine that there was no jurisdiction over a class of cases simply because the Court thought that there were too many eases in the federal courts.

The Federal Trade Commission retains regulatory and enforcement authority over the advertising (as opposed to the labeling) of foods, drugs, and cosmetics. See 15 U. S. C. §§ 52-55.